Archives: May 2016

The immigration affidavit of support contract is governed by 8 U.S.C Section 1183a. Under this statute, an immigrant is inadmissible to the United States unless he demonstrates that he will not be dependent on federal and state institutions for financial support. To show the independence, the immigrant must have a sponsor that will execute an affidavit of support contract with the government under which the sponsor will promise to support the immigrant, and prevent him from being a public charge if the government grants the immigrant a permanent resident status in the United States. Under the contract, the sponsor will agree to maintain the immigrant at an annual income of not less than a 125% of the federal poverty guideline in the period in which the affidavit is enforceable. Under this contract, the immigrant is the third party beneficiary with the right to sue the sponsor if he breaches on his duty of support.

A lawsuit to enforce the duty of support is usually in the form of a breach of contract in which the immigrant seeks damages resulting from the breach. To determine the damage amount, a court will first consider the income that the sponsored immigrant earned in a given year to ascertain whether it was equal to or less than the federal poverty guideline amount for that year. If the income is equal to or more than the guideline amount, the sponsor’s support obligation would have been met, and he would not owe the sponsored immigrant in that year. If, on the other hand, the sponsored immigrant earned an income that is less than the guideline amount, the sponsor will owe the immigrant the difference between sponsored immigrant’s income and the guideline amount for the year.

Section 1183a does not really define income, But, in general, the term “income” means a gain or recurrent benefit that is measured in money for a given period derived from labor, capital or both. It also means gains from transactions in capital assets excluding unrealized transactions in capital assets excluding unrelated advances in value. See Webster’s third New International Dictionary of the English Language at page 1143 (1993).

It is only gains that directly benefit the sponsored immigrant that are considered to be income. If the immigrant realized a particular gain in a given year, that gain is used as an offset in the calculation of the sponsor’s financial obligation to the immigrant. There are, however, some direct gains that do not offset the sponsor’s obligation. These include settlement amounts to the sponsored immigrant as share in a family home in a divorce proceeding, or student loans that the sponsored is obligated to pay back.

There is a controversy on whether child support payments to the sponsored immigrant can be used as offsets in the calculation of the sponsor’s financial obligation. Some courts have ruled that it cannot be used if the support results in a benefit to the designated child alone. The court in Younis, for instance, ruled that a child support that the sponsored immigrant received for the benefit of the child alone is not a gain to the sponsored immigrant, and cannot be considered as an offset in the calculation of the sponsor’s obligation. See Younis v. Farooqi, 597 F. Supp. 2d 552 (2009). The Naik court, on the other hand, ruled that child support can be used to offset a sponsor’s obligation even if the support is designated for the child alone. See, Naik v. Naik, 944 A.2d 713 (2008).

The reasoning in the Younis court decision was confined to a support that was paid by the obligor that was no longer in a relationship with the obligee, and designated for and resulted in a benefit to the child alone. The court did not consider a situation in which the child is in the custody of the obligee that is in a marital relationship with a spouse that is not the father of the child, and the obligee used the child support payments, not only for the benefit of the child, but also for the benefit of the spouse. The court also failed to consider other related situations in which all or part of the child support is paid by a third party that happens to be the joint sponsor to the affidavit of support contract, and the sponsored immigrant profited from the payment.

Since a gain to the sponsored immigrant is critical to determining whether a particular amount should be used as an offset in the calculation of a sponsor’s obligation, it is my view that a child support that benefits a sponsored immigrant, even if designated for the child alone, should be used to offset a sponsor’s support obligation.

The writer of this article, Amadu Edward Swaray, is an attorney with Swaray Law Office, which is located in Brooklyn Center in Minnesota. Brooklyn Center is north of Minneapolis, and contiguous to Brooklyn Park, Crystal, Maple Grove, Fridley and New Hope. To know more about litigation on affidavit of support contracts, please contact a legal expert at Swaray Law Office at 763-549-0670 or swarayassociates@cs.com.

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